The Trial of Adolf Eichmann

National-Socialist legal writers also put up a most vigorous fight against the formal observance by the State of the rule of law in favour of a “substantive” rule of law.[67] In this context, only some typical examples – taken from a number of concurrent statements which defy any complete survey – can be referred to here as evidence for this trend. Thus, for instance, the following statement of Krauss, a disciple of Carl Schmitt, ought to be mentioned:[68]

“A State based upon the rule of law does not denote today – and neither did it in the nineteenth century -
any genuine reality, but only the absence of substantial value in the organization of a State. The words, a State observing no `rule of law’ (Rechtsstaat) belong to a category of bad combinations of words, and they have neither a substantial cognitive value, nor any fighting value at all…A State based upon the rule of law is a State of political weakness; it is part of the system of the Weimar Constitution, of a period when Germany had disarmed in every respect, morally as well as intellectually…If we retain the idea of the rule of law, we shall saddle the Fuehrer’s State with relativism. For eventually `law’ will then be defined as the restriction of leadership by its own volition, the observation of statutory law, as legality of substantive creativity…”

He continues that the idea of the liberal State based on the rule of law is an outdated expression which does not correspond to anything in the “reality of present times” and that the word Rechtsstaat is used in its old-fashioned meaning.

“When the State based on the rule of law is contrasted with the actual necessity of the State – and thereby with the State itself – and, based upon this point of departure, the question whether concentration camps are in conformity with the idea of the rule of law, is answered in the negative.”[69]

In a postscript to Krauss’s work, Carl Schmitt[70] states that “the victory of the ideas `citizen’ and `Rechtsstaat‘ coincides with the emancipation of the Jews” – a statement intended to bring the idea of the rule of law into disrepute.

Lange[71], too, considers the fact that the liberal idea of the rule of law has been promoted to a considerable extent by Jewish scholars as a grave defect. This author uses, for instance, the following expression intended to bring into disrepute a State based on the rule of law within its liberal meaning (which is already to be discredited by its designation as “statutory State”):

“Liberalism used the weapons of normative concepts and pseudo-values, coined and directed by that universal power, the press, which was controlled by a race without a land (p.5).

“National-Socialism has replaced the liberalistic worthless technique of life by clear values of life and led to victory ideas of duty and community which were pushed more and more into the background. Values like God and faith, people, race and homeland, honour and family rise high above the individual…(p.20).

“…the middle-class legalistic positivism which does violence to any decision of the Fuehrer by applying
thereto the illusion of considerations peculiar to its way of decision-making and by approving the right of judicial review…(p.35).

“…it results from this very idea that its (the new State’s) rights precisely are not limited by this
barrier and do not come to an end there. Therefore, the concentration camp precisely constitutes, for the idea of community, a form of safeguarding justice just as do protective custody, arrest pending investigation, penal custody…(p.30).

“The empty statutory State which in the last resort is a State without justice equipped with the Stateless
statutes, has been overcome by the National-Socialist State of justice. Thus the way from Liberalism to
National-Socialism is tantamount to the way from statute to justice, from nation to people,from imperialism to peace,from sword to spade” (p.40).

Roland Freisler is to be called, probably, the most determined and the most aggressive adversary of the
principle nulla poena sine lege. Time and again, Freisler[72] attacked this principle as being incompatible with National_Socialist ideas of justice. The formulation of the question of the heading of one of the relevant articles, “Protection of the People or of the Offender?,” is already typical of his views. Freisler was fully aware of the relation between the idea of the State based on the rule of law and the prohibition of retrospective application; therefore, he renews time and again the attacks of the liberal idea of the rule of law as such. A number of statements constituting a typical example of these attacks which were made in an article in the Deutsche Justiz (1937, p.151 ff) ought to be quoted here:

Freisler begins his comments by attacks on the liberal idea of the rule of law.

“…that this `State based upon the rule of law’ had become incapable of answering the question of the
relationship between the individual and the State, the basic question of the interaction between society and its members, that life within the State had drifted towards anarchy in the course of individualistic
atomization which had become more and more powerful.

“…Obviously this rule of law could not be the goal of the political structure aimed at by National-Socialism” as it (scilicet: NationalSocialism) does not permit formal considerations to become the straight-jacket of life…as it looks again on the relationship between a member of the people and the people itself from a natural and biological perspective and not from a legalistic one, artificial and remote from life.

Therefore, it cannot look upon the separation of powers as the essence of a wise organization of the State. On the contrary…It cannot provide for the control of leadership by its followers.

“Moreover, it cannot accept the consequences reached by the middle-class liberal State, based upon the rule of law, as for instance the guarantee of freedom for the dishonest contained in the sentence nullum crimen sine lege.”[73]

For the healthy approach of ordinary people precisely requires punishment where the deed is morally
reprehensible.”[74]

The comments of the Minister of Justice Guertner follow exactly the same trend:

“Now in this respect National-Socialist ideas of justice and State voice their criticism. They firmly demand that every behaviour which ought to be punished shall also be met with due retribution, that nobody shall succeed to escape through the mesh of the law and that, rather, the perpetrator of any deed which ought to be punished shall be awarded the punishment he deserves, regardless of the imperfection of the law.

Therefore, the sentence nulla poena sine lege will be countered by the sentence “nullum crimen sine poena. National-Socialism establishes thereby a new sublime goal to criminal law: the realization of genuine justice.”[75]

Freisler is also the author of the following sentence:

“The protection afforded by criminal law from wrongful deeds which ought to be punished, must not be left to limp behind the ingenious inventiveness of the enemies of the people; they rather have to know that by their acts they expose themselves to criminal sanctions, even if their wrongful deeds are clothed in forms which are not yet covered by statutory provisions.”[76]

One would think that the legal approach to the principle nulla poena sine lege advocated by National Socialism not only in its writings, but also carried out by its adherents in practice, had not only caused political and moral condemnation in principle but had also given rise to that conviction that as a matter of method, this road is impassable. Therefore it is not only surprising, but startling to find in the first decision in criminal matters of the (German) Supreme Court for the British Zone, dated 4 May 1948, the following sentence:

“The fact that Law No. 10 of the Control Council to a certain extent (this refers to crimes against humanity) penalizes offences which at the time of their commission had not yet been made punishable, does not constitute an obstacle to its application…

Such a provision is not unjust, and therefore a German judge does not need to feel a burden upon his conscience in applying this provision. Punishment with retrospective application is unjust if the offence at the time of the commission not only had not violated a statutory provision of criminal law, but if, in addition, it had not violated the code of morality.

This does not apply in the case of crimes against humanity. In the opinion of all men feeling themselves bound by the rules of morality, a grave misdeed has been committed, and it would have been the duty of a State respecting the rule of law to make provision for its punishment.

It is in line with the principles of justice to provide for a remedy of this defect in the execution of this duty by making a provision for punishment with retrospective effect. Moreover, this does not constitute a violation of the principle of a certainty of the law, but the restoration of its basis and prerequisites. The protection of wrongdoing is not the purpose of the certainty of the law.”[77]

In its decision of 18 October, the Supreme Court added to these principles the following sentence:

“The offense penalized by Law No.10 of the Control Council as a crime against humanity had already at the time of its commission been an offence which ought to be punished in the opinion of all men feeling
themselves bound to the rules of morality.”[78]

Therefore, the power to punish is derived again from the conviction that the perpetrator ought to be punished. The coincidence between the terminology and the methods used by the Supreme Court and, for instance, by Guertner makes an ominous impression. It is hard to believe that Israel, by following the same line of thought, will enter into such a dubious area, as the German Supreme Court had done.

E: Nulla poena sine lege according to Israeli law

It has been shown that there are certain doubts whether Israel is bound by international law to respect the
prohibition of retrospective application.

On the other hand,it must be stated that the municipal law of Israel provides for the prohibition of retrospective application and that an Israeli court is not empowered to convict the Accused Eichmann under the retrospective Nazi and Nazi Collaborators (Punishment) Law.

It is true that the prohibition of retrospective application is not entrenched in any Israeli constitutional law.
However, it has to be emphasized that art. 13 sec. 7 of the Draft Constitution expressly provides for the prohibition of retrospective application. Certainly, the reason why the Constitution has not yet been adopted is not the fact that in the question of criminal statutes with retrospective effect differences of opinion have arisen which cannot be settled. The prohibition as framed by the Draft Constitution can therefore be considered as the expression of a principle being already at present part and parcel of Israeli law.

This proposition is confirmed by the fact that Israeli criminal law has developed following the model of English criminal law – a law, which at least inasmuch as critical statutory law is concerned, recognizes the prohibition of retrospective application.

Conclusion of the Part 2.

The punishment of the Accused Eichmann under the provisions of the Nazis and Nazi Collaborators (Punishment) Law would be contrary to the prohibition of criminal statutes with retrospective effect and is therefore inadmissible.

Previous | Notes

The same picture of a dissolution of accepted values in the international sphere is drawn by Smith[42]. He states that since 1914 the sense of “human unity” and the idea of the universal character of law have been lost. Civilization generally is characterized by a state of “disintegration.”

Up to the beginning of this century, hopes of mankind had been based upon the belief that, notwithstanding the differences of religion and civilization, all men were united in the belief in the essential principles of a uniform law. The unity of the world was consistent in this common belief. This belief and this unity do not exist any more.

“The schisms and the hatred which now divide mankind go far deeper than any of the divisions of the seventeenth century, and there is no longer any common standing of reference to which all disputants are willing to appeal.”[43]

Similar resigned statements have been made by the Swiss scholar of international law, Max Huber.[44]

A most deplorable but convincing example of the absence of a generally binding consensus in the sphere of “international morality,” is to be found in the “Universal Declaration of Human Rights” which was adopted and promulgated by the General Assembly on 10 December 1948. One might think that in the question of basic human right no extraordinary difficulties should arise in arriving at a legally binding wording and at statutory expression on the basis of an “ethical minimum” of all civilized nations; for the contents of the rules to be framed are anyhow only the expression of a legal situation accepted by civilized nations as a matter of course as already existing. However, the very fact of the necessity of a “declaration” shows already how erroneous this assumption is. The fact that even in the question of basic human rights no moral and legal consensus of the community of nations can be found is most definitely supported by the following circumstances:

(a) Eight nations abstained, on the occasion of the vote on the Declaration.45 These abstentions cannot be explained by the antagonism between East and West; for also Saudi Arabia and South Africa abstained.[46]

(b) The Declaration, it is true, evoked emphatic positive response. Thus, for instance, the Chairperson of the Commission for Human Rights, Mrs. Roosevelt, praised the Declaration “as to become the Magna Carta of all men everywhere” and compared its adoption by the General Assembly of the United Nations with the French Declaration of Human Rights dated 26 August 1789;[47] other delegates described the Declaration as an “epoch-making event.” The delegate of Paraguay even used the words “flaming force which will lead all mankind towards felicity.”[48] However, the depressingly weak legal value of the Declaration is in sharp contrast to these responses.

Dwelling upon this aspect, Schwarzenberger could not refrain from making the following sarcastic remark: “There was only one other point which was equally firmly asserted by the representatives of the United Nations, and that was that the Declaration did not impose any legal obligations whatever on any member State.”[49] The fact that only the absolute absence of legal binding force enabled the adoption of the Universal Declaration of Human Rights at all, throws a dim and characteristic light upon the level of International Morality. Mrs. Eleanor Roosevelt, too, in her statement which obviously is in contradiction to her first enthusiastic praise of the Declaration – has “painfully stressed”[50] this scant legal effect:

“In giving our approval to the Declaration today, it is of primary importance that we keep clearly in mind the basic character of the document. It is not a treaty; it is not an international agreement. It is not, and does not purport to be, a statement of law or of legal obligation.”[51]

Schwarzenberger has a disillusioning and – according to his own words – obvious explanation for the fact that the “Universal Declaration of Human Rights” must remain an “unsatisfactory” document owing to its total lack of legal binding force; he calls the Declaration “an attempt to square the circle.”

“In an international organization which is based on the principle of heterogeneous universality, it is impossible to find a positive common denominator for totalitarian, authoritarian and democratic States and for economics based on liberal, socialist and communist principles.”[52]

In view of this weak basis of the substantial elements in the idea of the State observing the rule of law, one cannot but definitely approve Forsthoff’s following statement:[53]

“Therefore in the application of a Constitution for a State based on the rule of law, one will be well advised to rely, according to its nature, upon its technical contents and upon the rules defining the means of exercising power which are characteristic of that Constitution.

If…the legal-technical structure of a Constitution respecting the rule of law can be successfully upheld, this structure will afford a more effective protection against the open commission of injustice than the reliance upon supra_positive ideas. Thus, for instance, it is doubtful whether the systematic killing of incurably insane persons would have been carried out if this measure had required the making of a ruling to be published in the Reichsgesetzblatt – instead of Hitler’s strictly secret order[54] of 1 September 1939.”

The most recent historical research has proved the justification of this doubt. In a contribution made by Hans Buchheim, a scientific collaborator at the Munich Institute for Contemporary History – who had already distinguished himself by various publications on the subject of the Third Reich – on “Hitler as a Politician,”55 we find the following statements:[56]

“Questions of constitutional law and of the structure of the administrative apparatus not only did not interest him (that is to say: Hitler), but he failed to understand that a modern state needed an organization based on certain formalistic principles, binding legal provisions and continuity in its administration. In his view, any law (even a law made under his own rule), any restriction of authority and bureaucratic procedure were rather only annoying restrictions of his arbitrary power in the exercise of the sovereignty of the state, or even restrictions maliciously invented by the legal profession.”

He did not want to replace the Weimar Constitution by his own, the constitutional laws by National-Socialist laws; but, as a matter of fact – he wanted to avoid anything by which he would bind himself and lose his tactical mobility. Thus, for instance, it is typical…that he did not put into force a new and complete National-Socialist Criminal Code, because, had the occasion arisen, he could not have disregarded it without ado, as he had done in regard to existing criminal law. He refused to create the legal basis for the measures of euthanasia, as the ministries had demanded.”[57]

D: National-Socialism and “nulla poena sine lege”

The result just arrived at opens the way to an argument, the convincing power of which cannot possibly be disregarded by anybody, and least of all by an Israeli observer: the ferocious opposition of National-Socialism to the formal and legal-technical guarantees of the rule of law and, therefore, to its elements to which, in its opinion, no particularly great value ought to be attributed, and to which – this ought to be remembered once again – belongs also the rule “nulla poena sine lege,” a rule which has been the target of most resolute attacks by the National-Socialist leadership.

I. A glance at the Reichsgesetzblatt (Official Gazette) shows that the first encroachments of the NS-regime on the existing constitutional system consisted in the abolition of the formal guarantees of the liberal Constitution based upon the rule of law, and not in the adoption of substantive rules which could be described as materially unjust. Hardly a month after the establishment of the regime had passed, when it set out for its first and decisive attack. On 28 February 1933 the Regulations for the Protection of People and State were adopted.[58] These regulations – and not the Enabling Law – must be considered as the true “Constitution” of the National-Socialist State.[59]

The adoption of the regulations constituted, in the first place, an infringement of the principle of separation of powers, one of the most important structural elements of a State based on the rule of law. The formal basis of the regulations was art. 48(2) of the Weimar Constitution which granted power to make emergency regulations. Formally, the regulations were made as emergency regulations of the President of the Reich; in fact they were Hitler’s handiwork. The “defence against communist acts of violence calculated to endanger the state” was held out to be the object of the regulations; but even that was only a hypocritical circumlocution for a far wider purpose.

The regulations were made, issued and promulgated on 28 February, that is to say only half a day after the Reichstag fire which had occurred in the evening hours of 27 February 1933, and the attempt was made to justify the issue of the regulations as a reaction to that event. Already the timing of the regulations shows that it had been prepared well ahead.[60] These regulations abolished the most important basic rights, and above all they repealed the right of a person to be brought before a magistrate within 24 hours of his arrest.

Finally, the regulations – that is to say, the first important act of the National-Socialist legislator -
included also the first attack upon the principle “nulla poena sine lege.” Art. 5 of the regulations provided for the replacement of the penalty for the crime of arson – imprisonment with hard labour – by the death penalty. In order to remove any doubt as to the retrospective application of this provision, Hitler made on 29 March 1933 – with a view to the trial concerning the Reichstag fire – an additional regulation[61] which by its art. 2 expressly provided for the retrospective application of art. 5 of the Regulations dated 28 February 1933.

The “Law for the Removal of Distress Suffered by the People and the Reich (Enabling Law)”, dated 24 March 1933,[62] definitely abolished the principle of separation of powers.

Even before this law had been enacted, a further principle of the rule of law, namely the so-called “principle of legality” had been disregarded in regulations made on 21 March 1933.[63] These regulations declared quite plainly that the prosecution of “offences committed in the course of the struggle for the national uprising of the German people, in its preparation or in the course of its struggle for German soil” were prohibited.

These examples show already that National Socialism obviously considered the traditional formal institutions of a State-based written rule of law to be the most serious obstacle – and in their abolition the quickest and most reliable way – to the establishment of a regime based on violence.

II. The persecution of Jews by the National-Socialist regime consisted to quite a considerable extent in the impairment of the recourse to procedural rights by Jews which, under a system based upon the rule of law, are at the disposal of citizens for the defence of their rights. In this context the draft bill ought to be mentioned by which the rights of Jews to apply for legal relief in criminal proceedings were to have been restricted.[64] The bill which had been prepared and drawn up in all its details was not put in force by the issue of regulations only because the question had been settled by the enactment of Regulation No. 13 of 1 July 1943, made under the Nationality Law of the Reich,[65] for art. 1 (1) of these regulations provided “that offences committed by Jews shall be punished by the police.”

This transfer of jurisdiction over Jews to the police excluded eo ipso the right to apply for legal relief. At the same time, however, this provision resulted in the violation of an important principle of any State observing the rule of law: the monopoly of the courts in judicial matters which, for instance, today is expressly entrenched in art. 92 (1) of the German Basic Law.

III. It cannot be described here in detail to what extent National Socialism abolished the traditional elements and formal guarantees of the rule of law.66 It will be sufficient to mention here once again, and in short, certain subjects: the abolition of the separation of powers; restriction of judicial independence, or its abolition; direct intervention of the executive in the administration of justice (the Luftglass case); restriction of the power of judicial review of the validity of statutes; ousting the jurisdiction of the courts to a large extent; infringement of the monopoly of the judiciary by establishing a separate jurisdiction exercised by the SS; numerous provisions making administrative decisions binding upon the judiciary.

This development is most important because in respect of statutory law, even in Anglo-American jurisdictions the prohibition of retrospective application applies.[17] Therefore, Stone[18] is wrong in feeling himself entitled – in the discussion of the problem in the context of the Nuremberg Trials – to state, relying upon Radbruch, that the prohibition of retrospective application cannot be classified as a legally binding rule and that particularly in England it did not constitute a “rule of law,” but only a “moral principle.” In holding this view, not only the reliance upon Radbruch is erroneous, but the statement is also wrong on its merits.

In the passage quoted by Stone[19], Radbruch made the express reservation that only to “judge-made law” the prohibition of retrospective application could not be applied. In another passage too, Radbruch has upheld this view”:

“The prohibition of retrospective application of criminal law cannot apply, it is true, inasfar as “judge-made law” is concerned…where the constitution of the USA (art. I sec. 9 paragraph 3 and art. I sec. 10 paragraph 1) prohibits “ex_post-facto laws,” the meaning thereof, likewise, can only be statutes with retrospective effect, but not judge-made law.”[20]

Moreover, there cannot be doubt that the prohibition of retrospective application applies also in the United States, at least in respect of statutory criminal law. What other construction could be given to the provisions of the Constitution of the United States which have just been mentioned![21]

It has therefore to be concluded that the prohibition of retrospective application applies as a legal principle also in the Anglo-American jurisdiction, at least inasfar as criminal law is statutory law.

III. Nulla poena sine lege – a principle of international law?

In this respect, opinions differ. However the “General Declaration of Human Rights” dated 10 December 1948 provides in art. 11 (2) as follows:

“No one shall be held guilty of any penal offense on account of any act or omission which did not constitute a penal offense under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offense was committed.”

Now it is true that owing to the absence of binding character the meaning which can be attributed to this provision of the Declaration, is only a very narrow one. At any rate, by virtue of this provision the prohibition of retrospective application has not been promoted to the rank of a rule of international law.

Mention should also be made of the identically worded provision of art. 7 (1) of the European Convention for the Protection of Human Rights and Basic Liberties which at least has established the prohibition of retrospective application in a great number of European countries as an identical rule of municipal law. However, even the force of this provision is somewhat weakened by para. 2 which provides that by virtue of this article the conviction and punishment of a person shall not be excluded, if this person has been guilty of an act of omission which has been punishable at the time of their occurrence, according to legal principles generally recognized by civilized nations.

Owing to the doubtful character of this legal provision, the Federal Government was perfectly correct in making a reservation under art. 64 of the Convention in respect of para. 2 of art. 7; therefore para.2 at any rate has not the force of law in Germany.

On the other hand, art. 65 of the Geneva Convention on the Protection of Civilian Persons in Time of War, of 12 August 1949, is stronger evidence for the force of the prohibition in international law. According to this provision, provisions of criminal law made by the occupying power will come into force only after they have been published and brought to the knowledge of the population in their own language; they cannot have retrospective effect.

The opinion of authors differ. Most of those who reject the proposition rely upon the assertion that the ex-post_facto prohibition, does not fit into the system of the Common Law.[22] However, they overlook the fact that in Common Law jurisdiction too, the prohibition of retrospective application applies at any rate to statute law. This kind of argumentation is, therefore, not very convincing.

However, greater weight has to be attributed to Radbruch’s objection that the principle does not apply to international criminal law, this branch being to a large extent judge-made law.[23] Even assuming that this opinion is correct, nevertheless it must be emphasized that the exemption from the prohibition of retrospective application, recognized by Radbruch, applies only to jurisdiction based directly on international law but not to municipal jurisdiction based upon municipal statute law.

On the other hand, authors holding an affirmative view state that the prohibition of retrospective application is a general legal principle recognized by all civilized nations.[24] Smith, in particular, claims that the character of the prohibition of retrospective application as a rule of international law flows from its general recognition and from reference to art. 38 I(d) of the Statute of the International Court of Justice:

“If this rule was one of the `general principles recognized by civilized nations’ it follows that it formed part of international law, and that a trial which violates the rule is illegal under the law of nations.[25]

It is beyond all doubt that any legislation in violation of this principle is an offense against international law.”[26]

There are, however, authors who have expressed a view denying the existence of such a generally recognized principle of law,[27] so that it cannot be stated with absolute certainty that the prohibition of retrospective application has the nature of a rule of international law.

C: Objections to the rule of “nulla poena sine lege”

It stands to reason that objections to the rule “nulla poena sine lege” have been raised, and in fact they have been raised time and again.

Thus, for instance, an attempt could be made to raise doubt as to the axiomatic meaning of this principle having regard to the period when it came into existence. The prohibition of retrospective application stems from the period of enlightenment[28] and is therefore open to the objection of being the result of individualistic and liberalistic ways of thinking which have become obsolete long ago.

Thus, the principle would disregard the primary object of criminal law, namely the protection of society, preferring the guarantee of liberty of the criminal. The “function of criminal law is a guarantee of the rights of the individual”[29] originating in the maxim “nulla poena sine lege” would therefore result necessarily in the perversion of the administration of criminal justice, if the primary object and purpose of criminal law would not be any more the protection of society threatened by the criminal, which has even been abused by his misdeed.

If, in order to stress the importance of the prohibition of retrospective application, it is emphasized that this principle from time immemorial is part and parcel of the “classic” guarantee of liberties under the rule of law,[30] the following objections are to be expected:

“The prohibition of retrospective application is a liberalistic principle of partly formalistic nature.

In the first place, it prevents the punishment of deeds which are utterly immoral and ought to be punished. This can hardly be denied. However, at present, a State cannot be considered as respecting the rule of law, if it submits itself only to certain formal principles of law which can be called `legal_technical’ guarantees.

Rather substantial principles of justice characterizing the rule of law have come to the fore which the State ought to be bound to follow in the performance of all its functions, if it wishes to be called rightfully a `state respecting the rule of law.’ This attribution of substantial elements to the idea of the rule of law has also taken place precisely after the war in the jurisprudence of the Federal Republic of Germany, so that the strong emphasis laid upon formal elements in the idea of the rule of law would even not be any more in conformity with the legal conception actually prevailing in Germany.”

Indeed, the change, or the further development, of the idea of the rule of law in Germany cannot be denied.

Wintrich, the late President of the Federal Constitutional Court, following the Swiss scholar of constitutional law Kaegi, has given expression to that change by stating that the constitutional system of our liberal democracy is not merely a mechanism of majority indifferent to any values, but is the expression of a legal system determined and characterized by the hierarchy of its essential values.[31]

However, it has to be mentioned that recently salient opinions have been expressed in the Federal Republic,[32] stressing the dangers threatening the rule of law by underrating the formal elements, its guarantees of a legal_technical nature as compared with the attribution of substantial elements by reference to a so-called “supra_positive” law, to natural law, to inalienable ethical and moral values and by removing them to the second rank as being of secondary value. Forsthoff[33] has rightly recalled “that the rule of law is precisely characterized by carrying out its objects through strict wording and phrasing of the Constitution (separation of powers, independence of the judiciary, basic rights to which specific functions of guarantee classified by means of legal technicalities, are attached, the notion of statute law, etc.) and of the forms of activity of the State.”

This array of formal instruments in the rule of law affords a more efficient protection against the commission of wrong than “efforts directed towards a supra-positive strengthening of a Constitution based upon the rule of law.”[34] For such an effort presupposes the existence of the extra-legal binding character of ideas based upon natural law or other rules of ethics. However, this will be meaningful only, if “these ideas have a chance of being effective in critical situations – and only these situations do matter.”[35]

Forsthoff[36] is not alone in holding this view that our era is characterized by its ability to produce in critical situations ideologies proclaimed as ethics or morals – in any form and for any purpose whatsoever – and to have them accepted (and the experience of the National-Socialist era is a clear-cut depressing example for the truth of this thesis). A solid awareness of values, which alone could make such supra_positive ideas binding and at the same time enforceable in law, does not exist at present – and not only in the national but also in the international sphere. Thus, for instance, Jescheck[37] has raised doubts “whether supreme legally protected interests of the community of international law, recognized by the whole of mankind as absolute values, do exist at all.” Schwarzenberger has confirmed these doubts in his book “Power Politics.”[38]

At the outset, he emphasizes the religious origin of most ethical systems which, by a process of secularization, have developed, later on, a more or less greater degree of “autonomy” from their religious origin. Schwarzenberger then asks the following question:

“Does not this very origin of moral rules establish a presumption against the existence of an universal code of international morality? Do not necessarily Western, Soviet and Far Eastern statesmen mean very different things when they speak of justice, equity, honour or friendship between States?”[39]

In a survey of the views of the great religions in the question of “inter-state-relations,” Schwarzenberger ascertains the existence of “fundamental divergences.”[40] His sceptical reserve as to the meaning in law of “international morality” is therefore only a logical result.[41]

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Part 2: The meaning of “nullum crimen, nulla poena sine lege praevia” in the criminal proceedings against Eichmann

A. General remarks and scope of the discussion

I. The principle of the prohibition of criminal statutes having retrospective effect is generally described, in continental jurisdiction, by the maxim “nullum crimen, nulla poena sine lege (scripta et praevia) “; in Anglo-American jurisdictions, it is customary to call it: prohibition of “ex-post-facto legislation“. The principle of “nullum crimen” includes, in addition to the prohibition of legislation having retrospective effect, also the principle of certainty, i.e., the requirement of a distinct definition of the facts constituting an offense.

II. The Accused Eichmann is charged in the Information with the commission of offenses all of which are classified as offenses against sec.1. (crimes against the Jewish People, crimes against humanity and war crimes) and against sec. 3 (crimes of membership) of the Nazi Punishment Law. In the Information, reference is made, in addition to the aforesaid provisions, also to sec. 23 of the Criminal Code Ordinance, 1936. This latter provision does not define facts constituting an offense, but the rules regarding accessories; in particular it regulates the question of the indirect commission of an offense. This provision can therefore be disregarded in the following discussion; for Eichmann’s punishment as having acted indirectly would be unobjectionable even without the existence of a provision regulating the indirect commission of an offense (provided, of course, that Israel has jurisdiction and the material validity of the Nazi Punishment Law is established). The discussion can therefore be confined to secs. 1 and 3 of the Nazi Punishment Law.

Owing to this restriction, there is also no need to discuss the question whether objections based upon the principle of “nullum crimen” might be raised against secs. 2 and 4 of the Nazi Punishment Law which refer expressly to offenses under the “Criminal Code Ordinance” of 1936. However – should the Information be amended so as to apply a different legal provision to the facts as charged – it will be sufficient to state that the Criminal Code Ordinance continues to be in force as new Israeli law. Although the Ordinance continues to be in force as to its contents – more or less – as enacted in 1936, its legal basis as part of Israeli law, however, is only the provision of the Declaration of Independence, dated 14 May 1948 – that the law in force in Palestine on that date shall continue to be in force, inasmuch as it is not in contradiction to the legal principles embodied in the Declaration of Independence – and the corresponding provision of sec. 11 of the “Law and Administration Ordinance, 5708-1948,” dated 21 May 1948.

III. Crime against humanity[1] and the crime of membership in an organization (as a crime against humanity in the wider connotation) are offenses unknown in Israeli law before the enactment of the Nazis and Nazi Collaborators (Punishment) Law on 1 August 1950. Neither were these offenses known in international criminal law up to the end of the Second World War.

This statement cannot be met by the objection that in Israeli law – as well as in the law of other nations – certain varieties of the crime against humanity, as for instance homicide, had been punishable by law already before 1950, and that to that extent crimes against humanity should not be considered as being a “new” offense at all. But in reply to that objection it has to be stated that sec. 1 of the Nazi Punishment Law – as well as art. 6(c) of the London Charter and art.II 1(c) of the Control Council Law No.10 which already served as the model for the Israeli provision – is not intended to bring about only a specification of facts which had already constituted an offense and a change in the penalties provided, but to establish a new offense which is intended to deal with a kind of criminal activity entirely new in the view of Israel (and of the allied victorious powers).[2]

This applies, in particular, to the crimes against the Jewish People characterized by the offender’s intention “to destroy the Jewish People in whole or in part” (sec. 1 (b) of the Nazi Punishment Law). The criminal proceedings in Israel against Eichmann are distinguished, in addition, by the fact that at the time when the Accused had committed the offenses imputed to him, a general Israeli criminal code under which the “classic” crimes, as murder, unlawful wounding, deprivation of liberty etc., had been made punishable, had not even existed and that Israel, as has been demonstrated above in detail, cannot claim jurisdiction under international law over the Accused Eichmann either in respect of these “classic” crimes or in respect of the crimes against humanity.

These facts are corroboration of the view that secs. 1 and 3 of the Nazi Punishment Law constitute, without any doubt, an “ex-post-facto law” – a criminal law having no retrospective effect.

B. I. The principle of “nulla poena sine lege” in continental-European jurisdictions

1. Germany

The catchword-like formulation of the principle has its origin with Paul Johann Anselm Feuerbach who, in his
“Lehrbuch des gemeinen in Deutschland gueltigen peinlichen Rechts” (1st ed. 1801), coined the following dictum:

“Nulla poena sine lege, nulla poena sine crimine, nullum crimen sine poena legali.“

However, it would be erroneous to assume that this formula is also the historical origin of the principle itself, the history of the principle is much longer.[3]

At the time of the Weimar Republic, this principle has been entrenched constitutionally as a basic right in art. 116 of the Constitution of the Reich. The Bonn Basic Law for the Federal Republic of Germany, dated 1949, has likewise established the prohibition of legislation with retrospective effect as a basic right, in art. 103 (II). The retrospective effect of the criminal statute, as well as its construction by way of analogy to the detriment of the Accused, has been – or is – prohibited in both cases by virtue of constitutional provision.

2. France

The prohibition of construction by way of analogy and of legislation with retrospective effect had already been one of the demands of the French revolution. This demand had been expressed in art. 8 of the Declaration of Human Rights, dated 26 August 1789, as follows:

“Nul ne peut etre puni qu’en vertu d’une loi etablie et promulgee anterieurement au delit et legalement
appliquee.“

Art. 14 of the French constitution added thereto:

“La loi qui punirait des delits avant qu’elle existat, serait une tyrannie, l’effet retroactif donne a cette“

The Penal Code of 1810 – which is still in force at present – has given expression to the prohibition of legislation with retrospective effect in its art. 4, as follows:

“Nulle contravention, nul delit, nul crime, ne veuvent etre punis de peines qui n’etaient pas prononcees par la loi avant qu’ils fussent commis.“

The result of the foregoing is that France, too, has established the prohibition of legislation with retroactive
effect and of the construction of statutes by way of analogy. It has to be admitted that French jurisprudence has claimed the power of elastic interpretation to a wider extent than e.g. German jurisprudence; in these instances it has frequently at least verged upon analogy as a means of construction.[4] Moreover, there have been in France criminal statutes with retrospective effect; however, these statutes always provided only for the increase of penalties but not for the creation of new offenses.[5]

3. The Soviet Union

Already the “Principles of Criminal Procedure of the USSR and of the Republics of the Union” of 1924 provided, in art. 3., for the prohibition of legislation with retrospective effect. However, in practice, these principles have been frequently disregarded.[6]

The “Principles of Criminal Legislation of the USSR and of the Republics of the Union”, dated 25 December 1958, expressly provided, in art. 6 (1) and (3), for the prohibition of retrospective application:

“(1) The criminal nature and the punishment of an act are determined by the law which was in force at the time when the act was committed.

(2)…

(3) A statute providing for the punishment of an act or increasing penalties has no retrospective effect.”

Although the practice which disregards the prohibition of retrospective application which had been in force already in 1924 justifies even today the exercise of some caution in the evaluation of the chances of the actual respect for the principle, nevertheless, in Schroeder’s opinion,7 it cannot be denied that the prohibition of retrospective application established in art. 6 of the “Principles of 1958″ has some actual contents of reality for political and social reasons.

II. The principle of “nulla poena sine lege” in Anglo-American jurisdictions

As to interpretation by way of analogy and the creation of new offenses, Anglo-American law has always conferred upon the courts wider powers than those vested in the continental courts. This difference is based, in the last analysis, upon the principles of the common law which, by its very nature, is prevented from excluding the creation of criminal customary law. An important example is provided by the decision in Rex v. Manley[8] – which has met with some vehement criticism[9] – where the court practically created a new offense, although relying upon precedents (their relevance in the case in question has been strongly disputed).

On the whole it may, however, be concluded that in England the practice of judge-made law within the framework of the Common Law, has been recognized, as a matter of principle, also as far as criminal law is concerned, but that this practice has been exercised with he greatest caution.[10] This is also confirmed by Radbruch:

“The English judges have exercised their power to create new criminal law by way of precedent, only with judicious caution: `In all periods of English history it has been far more difficult to enlarge the scope of criminal law by way of judicial precedent than any other branch of the law’ (Holdsworth).”[11]

For the sake of completeness, however, two statements from more recent times ought to be mentioned where – in connection with the trials of war criminals – the existence of the law_making function of judges has been denied generally. In this sense, it has been stated by the American Judge Leon W. Power:[12]

“One thing which should be made unmistakably clear at the outset is that the Tribunal is not a law-making institution. I violently disagree with the opinion that we are engaged in enforcing international law which has not been codified, and that we have an obligation to lay down rules of conduct for the guidance of nations in future. Such a conception entirely misconstrues our function and our power, and must inevitably lead to error of the grossest sort.”

A similar opinion has been voiced by the Indian judge Pal.[13] Moreover, there is no room for exaggerating the difference between English judge-made law and the continental system of statutory offenses. The meshwork of precedents, in the meantime, has become so closely knit, that, owing to the existing binding force of precedents there is no longer any material difference between the continental and the Anglo-American systems of criminal law. Jescheck is therefore correct in stating that the “era of unfettered power to create new law has come to an end and is a matter of the past.”[14]

In addition thereto it has to be stated that since the beginning of the second half of the nineteenth century criminal law in England and the USA is more and more regulated by statute.[15] Today, in England, most provisions of criminal law and most of the definitions of offenses are based upon statute.[16]

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